Search This Blog

whetherOrder 15A CPC is only available to the landlord during the proceedings before the trial Court, as the question of striking off the defence would arise only during the suit, and that it is not open to the landlord, the respondent/plaintiff, to take recourse to this legal provision at the appellate stage.= suit was filed for eviction of the petitioner/ defendant from the suit schedule property and for arrears of rent of Rs.23,000/-, being the dues from March, 2007, to October, 2008, and for future damages.= whether Order 15A CPC would have application at the appellate stage of the suit proceedings is left open for consideration in an appropriate case. The order under revision in C.R.P.No.347 of 2016 is set aside as a substantial part of the rental arrears has been paid. Both the revisions are allowed to the extent indicated above.

THE HON’BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NOS.347 AND 743 OF 2016
C O M M O N O R D E R
These revisions under Section 115 CPC arise out of the same
suit and are therefore amenable to disposal through a common order.
The petitioner in both the cases is the defendant in O.S.No.458 of
2008 on the file of the learned Principal Junior Civil Judge, Bhimavaram.
The said suit was filed for eviction of the petitioner/ defendant from the
suit schedule property and for arrears of rent of Rs.23,000/-, being the
dues from March, 2007, to October, 2008, and for future damages.
The
suit was decreed by the trial Court on 04.01.2014 directing the
petitioner/defendant to deliver vacant possession of the suit property
within two months from the date of the decree and giving liberty to the
respondent/plaintiff to file execution proceedings to secure relief through
the process of law otherwise. The petitioner/defendant was directed to
pay Rs.23,000/- towards arrears but the claim for future damages was
dismissed.
As the petitioner/defendant failed to vacate the suit property as
directed, the respondent/plaintiff filed E.P.No.105 of 2014.
While so, the
petitioner/defendant filed a first appeal, with some delay, against the
judgment and decree in O.S.No.458 of 2008 before the learned III
Additional District Judge, Bhimavaram.
He also filed I.A.No.54 of 2015
therein seeking stay of the proceedings in E.P.No.105 of 2014. While so,
the respondent/plaintiff filed I.A.No.643 of 2015 in I.A.No.54 of 2015 in
the unnumbered appeal under Order 15A CPC seeking a direction to the
petitioner/defendant to deposit the arrears of rent from March, 2007, and
in default thereof, praying that the Court strike off his defence. By order
dated 06.11.2015, the appellate Court allowed the said I.A. and directed
the petitioner/defendant to deposit the entire arrears of rent into the Court
by 20.11.2015.
Aggrieved thereby, the petitioner/defendant filed
C.R.P.No.347 of 2016.
Separately, by order dated 04.01.2016, the executing Court of the
learned I Additional Junior Civil Judge, Bhimavaram, allowed
E.P.No.105 of 2014 and directed issuance of a delivery warrant on
payment of process.Aggrieved by this order, the petitioner/ defendant
filed C.R.P.No.743 of 2016. By order dated 19.02.2016, this Court
granted stay of further proceedings pursuant to the order dated
04.01.2016 in E.P.No.105 of 2014 subject to the petitioner/ defendant
depositing Rs.1,00,000/- to the credit of the execution petition. The
respondent/plaintiff was granted liberty to withdraw the said amount
unconditionally.
Heard Sri P.Durga Prasad, learned counsel for the
petitioner/defendant, and Sri S.Subba Reddy, learned counsel for the
respondent/plaintiff.
Sri P.Durga Prasad, learned counsel, contended that Order 15A
CPC is only available to the landlord during the proceedings before the
trial Court,as the question of striking off the defence would arise only
during the suit,and that it is not open to the landlord, the
respondent/plaintiff, to take recourse to this legal provision at the
appellate stage.
Sri S.Subba Reddy, learned counsel, would however counter this
argument and contend that as the subject legal provision is intended to
come to the rescue of the landlord, who is not only deprived of the
possession of the leased premises but also the rentals therefrom, it would
be open to an aggrieved landlord to take recourse to the said provision
even at the stage of appeal.
It is however admitted by both the learned counsel that pursuant to
the interim order granted by this Court in C.R.P.No.743 of 2016, the
petitioner/defendant deposited Rs.1,00,000/- before the executing Court
and it has also been withdrawn by the respondent/ plaintiff. Sri S.Subba
Reddy, learned counsel, would further concede that upon such deposit
and withdrawal, the balance amount due would be about Rs.30,000/- or
so.
Given the aforestated facts, as the petitioner/defendant’s appeal is
still pending consideration on the issue of delay and as a substantial part
of the rentals due has already been paid, this Court does not deem it
necessary to adjudicate these revisions on merits.
As the appellate
Court is yet to consider the condone delay application in the appeal filed
by the petitioner/defendant and as giving effect to the judgment and
decree in O.S.No.458 of 2008 at this stage would automatically render
the said appeal infructuous, the order dated 04.01.2016 passed by the
executing Court in E.P.No.105 of 2014 in O.S.No.458 of 2008 is set
aside.
As the appeal was filed with delay in October, 2014, the learned III
Additional District Judge, Bhimavaram, is requested to consider and
dispose of the same as expeditiously as possible.
The question as to whether Order 15A CPC would have
application at the appellate stage of the suit proceedings is left open for
consideration in an appropriate case.The order under revision in
C.R.P.No.347 of 2016 is set aside as a substantial part of the rental
arrears has been paid.
Both the revisions are allowed to the extent indicated above.
Pending miscellaneous petitions in both the C.R.Ps. shall stand
closed in the light of this final order. No order as to costs.
______________________
SANJAY KUMAR, J
22
nd MARCH, 2016
Svv

The Hon’ble Sri Justice B.Chandra Kumar Appeal Suit No.144 of 2012 Dated 9th August, 2012Judgment: The appellant filed this appeal challenging Order, dated27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation . The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008. As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale. The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on12-10-2011; that the respondent acknowled…

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable =in VadirajNaggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra), it is held as follows: "17. It is now well settled that the power to recall any witness underOrder 18 Rule 17 CPC can be exercised by the Court either on its own motion oron an application filed by any of the parties to the suit, but as indicatedhereinabove, such power is to be invoked not to fill up the lacunae in theevidence of the witness which has already been recorded but to clear anyambiguity that may have arisen during the course of his examination. Of course,if the evidence on re-examination of a witness has a bearing on the ultimatedecision of the suit, it is always within the discretion of the Trial Court topermit recall of such a witness for re-examination-in-chief with permis…

The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III
Additional District Judge, Tirupati against the appellants and respondents 2 to
5 herein, for the relief of perpetual injunction in respect of the suit schedule
property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land
on which the hotel was constructed was owned by the appellants and respondents 2
and 3, and his wife by name Saroja, and all of them gave the property on lease
to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a
document …